What's on the horizon
By Adam Newton
Lawyer & contributing writer
Although the right to petition does not produce as much judicial or legislative activity as the other First Amendment freedoms, some emerging trends in the law do promise conflict:
Tort reform. A tort is a civil wrong (as opposed to criminal). Tort reform, an effort to curb by state statute the volume of civil lawsuits and amounts of damage recovery allowed, restricts the right of litigants to make certain kinds of claims for recovery. The tension between such reforms and petitioners’ rights remains unresolved.
The petition clause of the First Amendment comes into play because state legislatures that enact tort reform are essentially prohibiting or restricting litigants' abilities to bring certain claims, present certain arguments, and recover for certain damages in court — despite their right of access to the courts.
Sovereign immunity. Sovereign immunity, a concept rooted in English common law, holds that the government cannot be sued for carrying out duties for which it is legally empowered, even if individuals' rights may be infringed. As the U.S. Supreme Court continues to refine the doctrine of sovereign immunity, it places the government as defendant beyond the reach of legal redress. Not only can litigants not recover against the government under this doctrine — they cannot even bring suit. In other circumstances, the Supreme Court has recognized that the petition clause guarantees a right of recourse to the courts.
The issue of whether the government can be sued places this right on a collision course with expanding notions of sovereign immunity. Indeed, one scholar has called the petition clause the “constitutional antidote to the familiar doctrine of sovereign immunity.”
Neither the courts nor the academic literature has fully assessed the impact of these trends upon the right to petition.